Chief Justice Robert French yesterday delivered at Sydney Law School the inaugural George Winterton Lecture on "The Executive Power". The chief justice commented on "the enduring tension between executive power and the rule of law". He continued:
That tension is not confined to the circumstances of war or civil strife.ï¿½ It may arise in politically sensitive areas of executive decision making or where the executive government has a program of action including the implementation of legislation and limited time to put it in place between elections.ï¿½ The tension between the imperatives of executive government and the rule of law is sometimes manifested in official impatience with legal processes and the view that they are an interference with and impose unnecessary transaction costs on good government.ï¿½ A rather clear example of that view was seen in an argument put in the 2001 Tampa Case.ï¿½
Executive concern about the burdens imposed upon government by judicial review has from time to time been translated into legislation in the form of privative provisions seeking to prevent or limit access to the courts.ï¿½ Such provisions have a long history in the United Kingdom and in Australia.ï¿½ Generally they have failed to preclude judicial review of the lawfulness of executive decisions.ï¿½ In Australia, which has a written Constitution with a distribution of powers between Commonwealth and State parliaments, no decision maker has carte blanche.ï¿½ Unlimited power would be unconstitutional power. Moreover there is a constitutionally entrenched jurisdiction in the High Court to entertain applications for judicial review of the decisions of officers of the Commonwealth where mandamus, prohibition or an injunction is sought.ï¿½ï¿½ In the United Kingdom and Australia privative clauses have been interpreted so as to limit considerably their impact upon judicial review.ï¿½ These interpretive approaches reflect the concern that executive power without legal constraint would mean, as Lord Denning observed more than 50 years ago, "that the rule of law would be at an end".
19 February 2010